Lisbon Treaty may be altered without need for referendum

BRUSSELS IS working on a plan to avoid a referendum, in Ireland or elsewhere, by adopting a special procedure to meet German demands for changes to the Lisbon Treaty.

With Europe under intensive pressure to calm the debt emergency, European Council president Herman Van Rompuy will urge leaders at a dinner in Brussels tomorrow night to support a limited change to the treaty which can be approved by a unanimous vote of heads of state and government.

The summit comes amid anxiety that any failure to radically upgrade efforts to tackle the crisis and eliminate doubt about the response to it would endanger the single currency and threaten the wider European project.

Ireland and other countries have been resisting the clamour for treaty change, but it remains the centrepiece of a joint proposal from Germany and France to strengthen the enforcement of Europe’s budget rules.

Although Taoiseach Enda Kenny has not publicly conceded the principle that a treaty change is required, high-level European sources said the process was all but inevitable.

Only today will German chancellor Angela Merkel and French president Nicolas Sarkozy deliver a formal plan to Mr Van Rompuy.

However, sources briefed on private talks with Berlin and Paris said the amendments they were seeking could be made by rewriting a protocol attached to the treaty which sets out how Europe deals with countries which persistently breach budget guidelines.

Under article 126 of the treaty on the functioning of the EU, which gives effect to the Lisbon pact, government leaders have the power to replace the “protocol on the excessive deficit procedure” by voting unanimously to do so.

Although the leaders must “consult” the European Central Bank and the European Parliament, this mechanism is seen as a back-door route to treaty change as the protocol has the same legal effect as the treaty itself.

“The [Irish] Government was already empowered to make such changes when the treaty was approved,” said a high-level European official who is involved in preparations for the summit.

The Government is obliged under the Crotty judgment of the Supreme Court to conduct a referendum on any measure which exceeds the essential scope or objectives of existing treaty provisions.

While the text of the actual proposal remains subject to negotiation, legal experts believe the kind of protocol change Mr Van Rompuy has in mind may not trigger a referendum.

“Altering the protocol doesn’t change the procedure set out in article 126. It merely changes the manner in which it is implemented,” said Dr Gavin Barrett, a law lecturer at University College Dublin.

The preparations for the summit come against the backdrop of renewed political pressure from the US. After separate talks in Germany with German finance minister Wolfgang Schäuble and European Central Bank president Mario Draghi, US treasury secretary Timothy Geithner made it clear that Washington was keen to see a decisive new response to the emergency.